OGWO WISDOM, LLB (in view)

20th Sep, 2023 : 9;16am

Introduction

So, you've just landed a new job, and you're probably wondering about the intricacies of your employment beyond what's written in your contract. While the employment contract outlines many of your rights and responsibilities, there are certain aspects that might not be explicitly spelled out but are nonetheless crucial to your working relationship. These are known as 'implied terms of employment,' and they play a significant role in shaping your experience in the workplace. Section 91 of the Labour Act 2004 defined a contract of employment as  “an agreement whether oral or written, express or implied whereby one person agrees to employ another as a worker and that person agrees to serve the employer as a worker”   In a contract of employment the employer stipulate the terms of employment to the employee which can be express or implied. Terms of contract of employment state the obligations, dos and don’ts of parties. When terms of employment are expressed they are written down, orally and easily accessible. But, in implied terms, it’s otherwise. In this article, we'll delve into the world of implied terms in a contract of employment, exploring what they are, how they come into play, and why they matter to both employees and employers.

What is an Implied Term of a Contract Really? 

Implied terms are terms of the employment contract that are not necessarily set out in writing or were agreed orally, but will nevertheless form part of the agreement between the employer and employee. In the absence of express terms in a contract of employment some terms are assumed to be implied in order to give business efficacy to the agreement. In Devonald V. Rosser & sons, it was held that Terms will be implied into a contract of employment when it’s necessary to give efficacy to the agreement between the employer and the employee, or when such term is common practice, or when the employer and the employee must have intended it.

What are the Sources of Implied terms?

  Due to the sui generic nature of implied terms and often times inability to ascertain it or pinpoint that which is an implied term, it is pertinent to touch or elaborate its sources which were emphasized in Olatunde V Obafemi Awolowo University and Asrta Industries Nigeria Ltd V N.B.C.I. The sources include:

• Common law

• Collective agreements

• Workplace notices and documents

• Customs and practices

• Terms imposed or assumed by the courts

• Statutes

    Now, let's give some examples of things that if not stated in the contract are usually deemed or implied to be an agreement between the parties. The Following are terms that form part of the agreement in the contract of employment whether they are expressly provided or not, it’s believed that parties will always assume or intend it to be terms of the contract, they are:

a. Payment of wages:

Wages are fundamental in a contract of employment, where parties expressly omit to insert a term that covers payment of wages and the fixed amount to be paid.  The law implied that a wage should be paid and the absence of a fixed amount to be paid is to be determined by the rate prevailing at the time and place of engagement. See S. F. Peters of Oron v. Symmons

b. Implied duty not to undermine the trust and confidence of employees:

This is widely omitted in being expressly stated in terms of a contract of employment. Over the years the scope has been broadened to include maltreatment and verbal abuse. This implied duty is placed on the employer not to destroy the trust and confidence between the employer and employee.  It was succinctly elaborated in Woods’ case  where Lord Denning said:

It’s the duty of the employer to be good and considerate to his servants, sometimes it’s formulated as an implied term not to do anything that’s likely to destroy the relationship of confidence between them.

c. Termination of contract:

It’s a common law principle that “he who hires, can fire” and it is settled in a plethora of cases that an employer can fire an employee at any time for no reason as far as it is in compliance with the terms of the contract. See FAKUADE V. O.A.U.T.H  where the Supreme Court held inter alia:

I think the trial court was right. But generally speaking, a master can terminate the contract of employment with his servant at any time and for any reason or for no reason at all, provided the terms of the contract of service between them are complied with.

However, where no Termination of contract clause was expressed by parties there is an implied term by statute in section 11 of the labour Act 19990 which states:

Either party to a contract of employment may terminate the contract on The expiration of notice given by him to the other party of his intention to do so. (2)The notice to be given for the purposes of subsection (1) of This section shall be-

One day, where the Contract has continued for A period of three months Or less;

(b)One week, where the Contract has continued for More than three months But less than two years;

(C) two weeks, where the Contract has continued for A period of two years but Less than five years; and

(d)One month, where the Contract has continued for Five years or more.

d. Implied duty to be willing to work:

It’s implied by common law that it’s expected of an employee to be able to work and deliver the required services. Where an employee fails to work or fails to show up to work without any excuses, the employer can adjust his wages accordingly. Not delivering required services as an employee amounts to a breach of contract, and the court will not fail to imply it were it is not expressly stated. Where employees embark on strike then the principle of “no work, no pay” will apply see section 45 of the Trade Dispute Act 2004.

Conclusion

In the world of employment, where individuals and organizations come together in pursuit of common goals, the fine print of your contract can only tell you so much. Beyond the written words, there lies a dynamic realm of "implied terms of employment" that define the unspoken expectations, the unwritten rules, and the underlying principles that govern your professional journey. As we've explored in this article, these implied terms are not arbitrary; they are born out of necessity and practicality. They ensure that your employment relationship functions smoothly and fairly, even when not explicitly detailed in your contract. Implied terms are the silent architects of workplace harmony, subtly weaving the fabric of trust, fairness, and mutual understanding between employer and employee.

From the payment of wages to the duty not to undermine trust, from the termination of contracts to the willingness to work, these implied terms underpin the employment landscape. They transcend mere words on paper, forming an integral part of the employer-employee compact. While our discussion has shed light on some common implied terms, it's important to remember that the list is far from exhaustive. The world of employment is dynamic, and the courts are ready to imply terms when necessary to ensure the contract serves its intended purpose. So, whether you're the employer crafting the terms or the employee navigating them, understanding the realm of implied terms is essential. It's a reminder that in the world of work, there's often more than meets the eye.

 References

[1] Malian Johnson, Implied terms in employment contract< Rocketlawyer.com> accessed on 24 August 2022.

[2] 1906,2kb.

[3]  (1998) 4 S.C.

[4]  (1998) 3 S.C. 98.

[5]( 1924, 5 NWLR

[6] (1993) 5 NWLR (PT.291) 47

N/B: Please note that this information is not a comprehensive overview of the topic and one would need tailored advice from a legal professional in respect to their particular situation. You can reach out to the author.